2016 (12) TMI 1687 - AT - Customs

Recovery of refund sanctioned earlier - it was found that Revenue instead of reviewing the respective refund orders and filing appeals before the Commissioner (Appeals) issued demand notices to the assessee to realize the amounts erroneously refunded - unjust enrichment - Held that - When the assessee respondent gave a Chartered Accountant s certificate saying that the burden of 4% CVD was not passed on by the importer to any other person, it is difficult to accept the Revenue s argument against the assessee respondent without there being any documentary evidence to such effect. Also, the department has not given any evidence either to prove the fact of such habitual and repeated offences by the present assessee respondent or to substantiate the fact of case of unjust enrichment on the part of the assessee respondent. Appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against Commissioner (Appeals) order setting aside two Orders-in-Original for recovery of refunded amounts with interest. Burden of Additional Duty of Customs passed on to buyers by the respondent. Application of Chartered Accountant's certificate and C.B.E. & C. Circular No. 16/2008-Cus. Habitual offender status of the respondent.

Analysis:
The appeal was filed by the Revenue against the Commissioner (Appeals) order setting aside two Orders-in-Original for the recovery of refunded amounts along with interest. The impugned order was based on the grounds that the Revenue issued demand notices instead of reviewing the refund orders and filing appeals, which was deemed improper. The Commissioner (Appeals) referenced the Hon'ble Gujarat High Court order to support the decision. The Department was represented by the AC (AR), while no one appeared for the respondent.

The main argument presented by the Department was that the burden of Additional Duty of Customs was passed on to buyers by the respondent, as reflected in the books of accounts. The Department cited the Supreme Court's decision in Grasim Industries Ltd. v. Commissioner of Central Excise, Bhopal to support their claim that erroneous refunds should be demanded back. However, upon review of the facts and submissions, it was found that the Department failed to substantiate the passing on of the duty to buyers. The Chartered Accountant's certificate provided by the respondent stated that the burden was not passed on, which was considered valid in the absence of contrary evidence.

The Department also alleged that the respondent was a habitual offender, but no evidence was presented to prove this claim or the unjust enrichment on the part of the respondent. Consequently, the appeal filed by the Revenue was deemed without merit, and the impugned order was sustained. The judgment highlighted the importance of providing substantial evidence to support claims of passing on duty and habitual offenses, emphasizing the significance of documentation like the Chartered Accountant's certificate and adherence to relevant circulars.